Broughton v. Brewer, Civ. A. No. 5266-68-T

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Citation: 298 F. Supp. 260
• Docket Number: Civ. A. No. 5266-68-T,Civ. A. No. 68-676.
• Parties: Reginald V. BROUGHTON et al., Plaintiffs, v. Albert BREWER, Governor of the State of Alabama, et al., Defendants. James BAINES et al., Plaintiffs, v. MacDonald GALLION, Attorney General of Alabama, et al., Defendants.
• Decision Date: 13 March 1969

298 F. Supp. 260

Reginald V. BROUGHTON et al., Plaintiffs,
v.
Albert BREWER, Governor of the State of Alabama, et al., Defendants.
James BAINES et al., Plaintiffs,
v.
MacDonald GALLION, Attorney General of Alabama, et al., Defendants.

Civ. A. No. 5266-68-T, Civ. A. No. 68-676.

United States District Court S. D. Alabama, S. D., United States District Court N. D. Alabama, W. D.

March 13, 1969.

298 F. Supp. 261

Vernon Z. Crawford, Mobile, Ala., and Jonathan Shapiro, New York City, for plaintiffs, Broughton and others.

Gordon Madison, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for defendants Brewer and Gallion.

Allan R. Cameron, Mobile, Ala., for defendant Bridges.

T. Raymond Williams, Asst. City Atty., Mobile, Ala., for defendants Mims, Collins and Robinson.

298 F. Supp. 262

Sydney S. Pfleger, Chief Asst. Dist. Atty., Mobile, Ala., for defendant Booth.

Richard Singer, Civil Liberties Union, University, Ala., for plaintiffs Baines and others.

J. Wagner Finnell, City Atty., Tuscaloosa, Ala., for defendant Shelby.

Gordon Madison, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for defendants Gallion and Lackey.

Before RIVES, Circuit Judge, and LYNNE and THOMAS, District Judges.

OPINION AND ORDER

RIVES, Circuit Judge:

For purposes of trial, we consolidated these two separate and factually unrelated actions challenging the constitutionality of the vagrancy statute of the State of Alabama.¹

298 F. Supp. 263

The Mobile Case.

Reginald V. Broughton, Bobby Haggins, and Joe Davis Holifield, minors represented by their respective parents individually and as class representatives, brought this action against the Governor of Alabama, the Attorney General of Alabama, and various Mobile County and City officials. Jurisdiction was alleged under 28 U.S.C. §§ 1343(1) and (3), asserting rights protected by 42 U.S.C. §§ 1981, 1983, 1985 and 1988. Injunctive and declaratory relief was sought. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281 and 2284.

Plaintiffs sought injunctive relief to restrain defendants and their agents and successors from depriving, under color of law, plaintiffs and others similarly situated of rights guaranteed by the United States Constitution. Plaintiffs also seek a declaratory judgment that the Alabama vagrancy statute is unconstitutional on a number of grounds.²

The facts are relatively clear and undisputed.

The three Negro minors, together with two companions not parties herein,³ were engaged on November 21, 1968, in a handbilling campaign as volunteer workers for the Neighborhood Organized Workers (N.O.W.). The N.O.W. campaign was directed against the downtown Mobile white merchants who were alleged by the organization to be racially discriminatory employers. The message contained in handbills and on placards was addressed primarily to the Negro community and urged that Negroes refrain from making Christmas purchases from the merchants in an effort to pressure them economically into nondiscriminatory hiring.⁴ Reacting to the N.O.W. campaign, Mobile Police Chief James Robinson reassigned two Negro patrolmen, Officers Isaac George and Leon Smith, from their predominantly Negro beats to the vicinity of the N.O.W. campaign. Their instructions were to prevent sidewalk obstruction and to arrest any demonstrator who engaged in "intimidation."

At the scene of the demonstration, the demonstrators were instructed by the officers to keep a six foot interval between themselves to avoid sidewalk obstruction. They complied. The officers then moved on, but returned shortly thereafter upon receipt of a complaint from an unidentified white woman who reported that Joe Davis Holifield had intimidated an unidentified Negro woman as she entered a white merchant's store. He was accused of telling the Negro woman she had better not be seen emerging with any purchases. He denied any such statement. Nevertheless, on the basis of the white woman's complaint, all of the demonstrators were arrested by Officer George, who informed them the charge was "city vagrancy" and transported them to the city jail.

At the jail, Chief Robinson conferred with City Attorney Fred Collins and thereafter booked the formal charge as violation of the State vagrancy statute

298 F. Supp. 264

rather than "city vagrancy."⁵ Bond for each demonstrator was set at $1000, despite a normal practice of release on no more than $300 bond. Subsequently, at varying times for over eight hours, two respected members of the Mobile community, a Negro grocer and a Negro physician who between them held property assessed in excess of $28,000 according to public records, attempted to secure the release of the young demonstrators. Only after a series of delays and denials during a period from approximately 2:00 P.M. until 11:15 P.M. were the plaintiffs finally released on bonds secured by the grocer and the physician

Plaintiffs, represented by counsel in the City Recorder's Court, demanded a jury trial. They were bound over to await action of the grand jury. Thereafter the instant suit was filed. One regularly scheduled grand jury term intervened before trial in this Court, but no indictment against the plaintiffs has been returned. When asked for the current posture of the cases, the Clerk of the Circuit Court of Mobile County officially certified them as "awaiting action." Plaintiffs have been charged generally as "vagrants"; and no specification of the particular subsections upon which the criminal proceeding will be predicated has been officially made.⁶

By answer to interrogatories propounded in the instant case, plaintiffs have learned that they will be prosecuted under section 437(1), (2) and (3). Defendants uniformly state, moreover, that they will rely upon proof that the plaintiffs each "admitted not working and not going to school, continuing their prior practice of loitering in public places" in order to make out a prima facie case before reliance upon section 439.⁷ The defendants also indicate that prosecution would involve the fourth alternative clause in section 439.⁸ The plaintiffs, on the basis of the interrogatories,

298 F. Supp. 265

contend that this case is ripe for decision with respect to the facial validity of subsections (1), (2) and (3) of section 437, as read in conjunction with section 439.⁹

The Tuscaloosa Case.

A loosely-knit coalition of plaintiffs¹⁰ bring this comprehensive class action seeking to vindicate the constitutional rights of the "student community" allegedly trenched upon by the Attorney General of Alabama, the Tuscaloosa County District Attorney, and the Tuscaloosa City Prosecuting Attorney. Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1343(3) and (4), asserting rights protected by 42 U.S.C. § 1983. Plaintiffs seek injunctive relief as a bar to present or future enforcement of the State vagrancy statute and the enumerated ordinances. They also seek a declaratory judgment, pursuant to 28 U.S. C. §§ 2201 and 2202, that the State vagrancy statute and the enumerated city ordinances are so vague and overbroad as to be invalid on their face as violative of the First and Fourteenth Amendments to the United States Constitution. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281, 2283 and 2284.

At the outset, we are constrained to conclude that we are unable to entertain so much of the Tuscaloosa case as is predicated upon an attack on the city ordinances. Nowhere in the pleadings is there included the texts of the respective enumerated ordinance sections. The motion to dismiss filed by City Attorney Richard Shelby specifically notes that, while the plaintiffs' complaint attacks certain sections of the Code of Ordinances of Tuscaloosa, "yet it fails to allege either the text or substance of the offending ordinances." In addition, City Attorney Shelby, in his Answer to the Complaint, notes that no justiciable controversy existed with respect to City Ordinance §§ 23-7 (disorderly houses) and 23-14 (loitering).¹¹ Notwithstanding the above failure to specifically append to their complaint an official copy of the relevant ordinance provisions, plaintiffs further failed to introduce certified copies thereof into evidence. Only plaintiffs' brief contains any attempt to reproduce the enumerated ordinance sections. The pleadings and evidence being wholly lacking of any official or certified copy of the relevant ordinances under attack, we conclude that we are legally precluded in the absence

298 F. Supp. 266

of statutory authorization from taking judicial notice of such ordinances.¹² Relief must be denied as to so much of the complaint as pertains to the Tuscaloosa ordinances for failure of plaintiffs to plead or prove the ordinances under which they were arrested and charged

With the justiciable controversy before us limited to the attacks upon the State vagrancy statute, we proceed to a consideration of the relevant facts.

On Friday, October 4, 1968, Tuscaloosa police officers, possessing a search warrant for narcotics, made a raid on a curio shop (the "Haight Hut"), licensed under State and city law and catering to what might be generally described as "mod" or "hippy" clientele. The law enforcement officials presented the search warrant to Robert Ford, a co-owner of the shop and a university student.¹³ Pursuant to the warrant, the officers searched the premises for evidence of L.S.D., amphetamines and other illegal drugs for which the warrant had been secured. Bud G. Silvis, a co-owner of the shop and a university chemistry student, was arrested on a narcotics charge and certain chemicals found in the shop were seized, together with assorted items apparently from shop inventory.¹⁴

Simultaneously with the narcotics raid, the law enforcement officers searched and subsequently arrested Ford, Ford's wife Peggy, Mr. and Mrs. William Moody (friends of the Fords), Harold Ledbetter, Michael Stambaugh, and an unidentified student and his date (neither of...